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Children and Young People's Commissioner Scotland submission of 17 February 2022

PE1914/C - Ban school uniforms in secondary schools

Thank you for inviting us to comment on the above petition.

The petitioner raises a number of concerns about school uniform policies in Scottish secondary schools and many of these concerns have links to children’s human rights, as outlined in the UNCRC and other human rights treaties including the European Convention on Human Rights (ECHR), the UN Convention on the Elimination of Discrimination Against Women (CEDAW) and the UN Convention on the Rights of People with Disabilities (CRPD).

He challenges some of the common assumptions about school uniform, for example that they make things easier for families on low incomes and that they prevent children being judged by others. Whilst Mr Simpson’s petition relates to secondary schools, the comments we make relate to school uniform in all schools, including primary, special schools and early learning settings.

As the SPICE briefing highlights, pupils are not obliged to wear school uniform in Scotland. As Janys Scott QC states, there is no legal basis on which schools may compel children to wear any particular clothing. There are very limited circumstances in which restrictions on clothing may be legitimate, notably to prevent injury i.e. in technology classes or PE. These would always need to be justified on a case by case basis and should not be taken as endorsement of broad ranging rules.

However there appears to have been a trend in recent years for some schools, particularly secondary schools, to take an increasingly strict approach to school uniform and in particularly to insist on the wearing of ties and blazers. As SPICE highlight, there is limited evidence on the effectiveness of school uniform in raising attainment and we are aware of no evidence that specific types of uniform (such as blazers and ties) are any more or less effective.

Children’s right to an education, as set out in Article 28 of the UNCRC (and elaborated on in Article 29), together with children’s best interests (Article 3) and the principle of non-discrimination (Article 2) must be central to decision making in schools. Other rights, including the right to play and recreation (Article 31) can also be impacted by inappropriate dress codes. Decisions around school dress codes must not interfere with children’s enjoyment of these rights.

Schools may choose to provide a dress code for pupils but there is existing case law that establishes they must do so in a way which does not discriminate against children with protected characteristics. As well as meeting cultural and religious requirements, uniforms must be flexible enough to meet the needs of disabled children. Requiring restrictive clothing such as shirts, ties and blazers or formal trousers can be particularly difficult for disabled children, including those with autistic spectrum disorders and other neurodiverse conditions. Providing flexibility rather than exceptions to rules ensures that children and young people’s needs can be met without singling them out and increasing stigma.

Where schools do choose to develop a school dress code, this should be developed with the participation of all children and young people in the school, in line with children’s right to participate in decision making under article 12 of the UNCRC. The dress code should be designed to support all aspects of children’s education and wellbeing, to be flexible and comfortable, appropriate for all children and to be suitable for activities throughout the school day. This includes being physically active (including during breaks) and being warm and comfortable. And, in line with the legal position outlined by Janys Scott, it must be voluntary.

Yet, we continue to hear of situations where children have been disciplined for failing to wear correct uniform, including being placed on detention or being denied permission to take part in school activities. And as CPAG highlight, in some cases, children and young people opt not to attend school rather than risk attending with incorrect uniform. Enforcing school uniform in this way breaches children’s right to an education. We have also heard of instances where children have been sent home for not wearing correct uniform. This is an unlawful exclusion and should never happen.

It is important that the expense of school uniform is not a barrier to learning. Whilst the Scottish Government provides a school clothing grant of at least £125, not all families living in poverty are eligible and school uniform remains a significant expense for many families. We increasingly hear of schools requiring, or strongly encouraging, the purchase of specific items with the school logo, such as blazers, polo shirts or sweatshirts and of changes in uniform which require the purchase of new items, for example in P7 or senior phase. Some schools also require items of a specific colour which can only be purchased through specialist providers or the school. We believe that where a school has a dress code, items which are widely available at low cost, such as plain coloured polo shirts and sweatshirts, should be encouraged to minimise cost and potential stigmatisation of children who are living in poverty. Where schools sell uniform items themselves this must be at cost price.

Over the past two winters, with the need for additional ventilation resulting in low temperatures in some classrooms, we have heard of instances where children and young people were not allowed to wear warm clothing such as fleeces or coats as they were not uniform. Young people reported that this impacted on their ability to learn. Learning and the wellbeing of children must be put ahead of what are in many cases quite arbitrary uniform policies. Equally concerning, there have been examples where schools have permitted warmer clothing, but required children and young people to buy uniform versions via the school, increasing the cost to families.

One of the issues raised by the petitioner is children being able to express their personality and culture. This is in line with the right to an identity outlined in Article 8 of the UNCRC and the non-discrimination principle (Article 2). In terms of religious identity it is common for dress code policies to include exemptions, though these are inconsistent. Individual expression, however, has a tendency to be restricted, rather than encouraged, in schools with strict uniform rules.

By contrast to the general framing of the debate in Scotland and the rest of the UK, in 2017, the Swedish Schools Inspectorate (Skolinspektionen) found that “dress and appearance should be considered an individual expression, decided by the students themselves. How one dresses is a matter of the individual’s freedom and integrity.”

The Inspectorate ruled that by requiring children to wear a uniform (consisting of polo shirt and cardigan) a school violated the Swedish Education Act, which requires education to be delivered in accordance with human rights including freedom and integrity of the individual. This potentially engages Article 8 of the European Convention on Human Rights (ECHR) although there is currently no case law on this issue. The Inspectorate ruled that whilst the uniform could continue to be used, it must be voluntary and there could be no reprimands for not wearing it.

While it is not clear whether school uniforms are beneficial or not in terms of raising attainment, it is clear that strict uniform policies, enforced through school disciplinary processes, are not compatible with the realisation of children’s human rights. Where dress codes work best, they are developed with the active participation of children and young people, with the intention of realising children’s human rights, including the right to an education and with consideration for their comfort and their wellbeing, where they allow them to express their identity and are worn voluntarily.